The revisions to the final rule make changes to several provisions
of paragraphs (c), (d), (e), and (k) of OSHA's permit-space standard
(29 CFR 1910.146), and add a new paragraph (l). These changes, and the
Agency's rationale for making them, are described below. References to
exhibits in the docket (Docket S-019A) are designated "Ex.," followed
by the exhibit number. References to the continuously paginated
transcript of the public hearing held on September 27 and 28, 1995
(Exs. 192X, 193X), are designated Tr., followed by the page number.

A. Clarification of the Need To Provide Authorized Representatives With
Information Required by the Standard

Paragraphs (c)(5)(i)(E), (c)(5)(ii)(H), and (c)(7)(iii) have been
revised to specify that OSHA intends authorized representative(s) of
employees to have access to any information provided to employees under
the standard. These wording changes are meant to clarify what has been
longstanding OSHA policy and practice, i.e., to recognize the right of
authorized representatives of employees to receive the same information
as employees receive under the Agency's standards. In recognition of
that policy, the Permit Space standard promulgated in 1993 specifically
provides, in paragraph (c)(4), that the written program, which contains
the employer's procedures and policies for implementing that program,
be available for inspection and copying "by employees and their
authorized representatives." Thus, the changes being made to
paragraphs (c)(5)(i)(E), (c)(5)(ii)(H), and (c)(7)(iii) in this revised
rule merely provide additional clarification of the Agency's intent.

The need to clarify these provisions was discussed by the USWA,
which noted (Ex. 161-38) that "The right of employees and their
representatives to relevant information has been a regular feature of
OSHA standards since the beginning." In the same exhibit, the
USWA points to several OSHA standards, including the Hazard
Communication standard (29 CFR 1910.1200), the Employee Access to
Exposure and Medical Records standard (29 CFR 1910.1020), and the
Process Safety Management standard (29 CFR 1910.119) that "give
employees and their representatives very broad rights to information."
The USWA reiterated this view in post-hearing comments (Ex. 188). OSHA
agrees that it was the intent of the Permit Space standard to provide
both employees and their authorized representatives with access to the
information addressed by these provisions of paragraph (c), and the
changes made to the final rule reflect this position and bring the
Permit Space standard into conformance with the language traditionally
used in OSHA standards.

B. Employee Observation of Atmospheric Testing

Paragraphs (c)(5)(ii)(C) and (c)(5)(ii)(F) have been revised by
adding a sentence to each of them that specifically requires employers
whose employees enter permit spaces to give these employees, or their
authorized representatives, an opportunity to observe the testing of
the space during pre-entry (paragraph (c)(5)(ii)(C)) and during entry
(paragraph (c)(5)(ii)(F)). In the NPRM, OSHA solicited comment (59 FR
60737) about revising 29 CFR 1910.146 to allow affected employees or
their authorized representatives to observe the testing and evaluation
of confined space conditions, prior to and during entry. Specifically,
the proposal stated, "* * * the Agency is considering whether such a
provision [one requiring affected employees or their designated
representatives to be permitted to observe any testing conducted under
the confined space standard] should be added to the permit space
standard based on the concerns expressed and on the record developed as
a result of this notice."

The USWA (Ex. 161-38), which requested a hearing on this and other
matters, urged OSHA to incorporate such a provision into the standard
both on the grounds that employee protections would be enhanced and
that Section 8(c)(3) of the Act mandated the inclusion of such a
provision:

The benefits of employee observation of monitoring are well
established. Congress certainly thought employees should have the
right to observe the monitoring for air contaminants to which they
could be exposed * * *. We believe employee observation should be
viewed as a matter of right. Employees now have the right to observe
the monitoring of air contaminants outside confined spaces, even
when the potential health effects may not occur for many years. A
worker entering a confined space risks sudden death if the
monitoring was not done properly. Surely that worker should have the
right to observe the monitoring. (Ex. 161-38).

Many commenters argued that it was not necessary or appropriate to
add an observation of monitoring provision to the Permit Space standard
(see, for example, Exs. 161-9, 161-14, 161-20, 161-49, 161-55, 161-78,
184, 187, Tr. 40, 127, 170, 207). The issues raised by these commenters
centered on the following points:

(1) That the existing standard is adequately protective and thus
that no further changes are necessary;

(2) That the Act does not, at Section 8(c)(3), mandate such a
requirement for safety, as opposed to health, standards;

(3) That allowing employees and their representatives to observe
the testing of spaces would slow operations without adding to the
safety of the entry and might actually increase risks; and

(4) That such a provision has the potential for abuse and could
become a labor-management issue.

These issues, and OSHA's responses to them, are addressed in turn
below.

Several commenters were of the opinion that adding an observation
of monitoring provision is unnecessary because the existing Permit
Space standard already adequately provides for the sharing of relevant
testing information with entrants. For example, the Pennzoil Company
(Ex. 161-49) stated, "Existing requirements at Section 1910.146(d)(5)
and (e)(3) already provide for adequate employee access to the results
of testing and monitoring in permit spaces." Arguing along similar
lines, Union Electric (Ex. 161-35) noted that the existing standard
"already requires that the results of initial and periodic tests
performed under 1910.146(d)(5) be entered on the entry permit, and
1910.146(e)(3) now requires that the permit be made available to all
authorized entrants at the time of entry. As a practical matter,
affected employees are usually briefed on the results of the exposure
monitoring during the pre-job briefing and before entry into the
space."

OSHA is pleased to learn that some employers have taken the
additional safety precaution of providing entrants with a pre-entry
briefing that includes a report on the results of the monitoring of the
space, and the Agency is also aware that the existing standard contains
a number of provisions requiring employers to provide information on
the results of testing to those employees who are entering a permit
space. However, OSHA concludes that these provisions, although
essential to the safety and health of entrants, are not a substitute
for the observation of monitoring provisions being added to the
standard, for the following reasons.

Having access to the entry permit will not prevent the kinds of
errors that could be detected by having employees or their
representatives observe the actual testing of the space. For example,
evidence in the rulemaking record shows that monitoring errors, such as
using the wrong monitor, monitoring for the wrong substance, or failing
to test the space thoroughly, contribute to a number of confined space
accidents (Tr. 286, 317). And if the evaluation or testing of the space
is improperly performed, inaccurate information will unknowingly be
recorded on the entry permit, and entrants relying on this inaccurate
information could be placed at risk of sudden death or serious injury.
In situations such as these, the presence of authorized employees or
their representatives could well have detected the error and remedied
the problem.

The record contains reports of several incidents where employees
who observed improperly performed atmospheric tests were able to bring
the errors to the attention of the testers before an accident occurred.
For example, in one case, the person doing the atmospheric testing
calibrated the testing instrument inside the confined space. The
entrant pointed out this error and it was corrected (Ex. 161-38, Tr.
332-333). In other cases in the record, employee observation of testing
and monitoring might have prevented an accident. The International
Chemical Workers Union described an incident involving a vessel that
had been tested by a poorly trained evaluator who had apparently failed
to detect a flammable atmosphere. The vessel later exploded, killing
several workers. There are a number of other dangerous situations that
could arise that employee observation of monitoring could avert. For
example, authorized employees and their representatives are often aware
that significant changes may have occurred in conditions within the
space, e.g., that the employer is considering reclassifying the space
based on new monitoring data and can be expected to take extra
precautions as a result. Observing the testing process would also
permit employees or their representatives to detect human errors, such
as the inadvertent recording of inaccurate data. In addition, OSHA
believes that employees who directly observe the monitoring are likely
to gain an enhanced appreciation for the hazards they face.

Thus, OSHA believes that providing employees or their
representatives with the opportunity to observe the testing and
monitoring of permit spaces will have the same kinds of benefits that
such observation has had in the context of OSHA's health standards:
knowledgeable employees who are given the opportunity to participate
actively in protecting their own safety and health and that of their
co-workers often identify potentially serious problems and help to
solve them as well. Accordingly, paragraph (c)(5)(ii)(C) has been
revised by adding the sentence "Any employee who enters the space, or
that employee's authorized representative, shall be provided an
opportunity to observe the pre-entry testing required by this
paragraph." Similarly, the language of paragraph (c)(5)(ii)(F) has
been revised to add the following sentence: "Any employee who enters
the space, or that employee's authorized representative, shall be
provided with an opportunity to observe the periodic testing required
by this paragraph."

A number of commenters (see, e.g., Exs. 161-26, 161-35, 161-37,
161-48, 161-56, 161-72, 161-60, 187, Tr. 127, 170) expressed
disagreement with the USWA's view that Section 8(c)(3) of the Act
mandated such observation in the case of safety standards such as the
permit space standard. Section 8(c)(3) of the Act directs OSHA to issue
regulations requiring employers to maintain records of employee
exposure to potentially toxic materials or harmful physical agents and
providing employees or their representatives with "an opportunity to
observe such monitoring or measuring, and to have access to the records
thereof." This section of the Act provides the basis for the
observation of monitoring provisions in virtually all of OSHA's health
standards (see, for example, the asbestos, benzene, cadmium, lead,
methylenedianiline, methylene chloride, and butadiene standards).
Typical of these comments was one submitted by the Dow Chemical Company
(Ex. 161-20):

Section 8(c)(3) requires OSHA to promulgate regulations which
provide employees, and their designated representatives, with the
opportunity to observe the monitoring and measuring of, and have
access to, employee exposure records (emphasis in the original). The
atmospheric tests and space evaluations required under the Confined
Space Standard are not the type of employee exposure monitoring that
is envisioned by the Act.

In fact, OSHA stated in the NPRM its position that section 8(c)(3)
does not require inclusion of a requirement for employee observation of
monitoring in safety standards (59 FR 60737). Instead, the proposal
explained that any decision to add an employee observation provision to
the standard would be based on the record developed in this proceeding,
including the concerns expressed about the original standard. OSHA does
note, however, that the fact that Congress included a requirement that
observation of monitoring be allowed for toxic substance standards
indicates a Congressional preference for well-informed and involved
employees. And as explained elsewhere in this section, OSHA has
determined that the record in this rulemaking shows that employee
observation can have substantial benefits for employee safety and
health.

OSHA believes that this safety benefit adequately justifies any
minimal slowing of operations caused by the employee observation
requirement. In any event, as shown by other evidence in the record,
the employees assigned to enter the permit space are often already in
the area, waiting to enter it, while the space is being tested and
monitored (Ex. 161-25). Indeed, in a great many cases, it is the permit
space entrants themselves who perform the testing and monitoring (Ex.
161-09, Tr. 186-187, 190). Moreover, as with all of the employee
participation provisions being added in this revision, the record shows
that this practice is already fairly common and indicates that it has
not caused any production problems (Exs. 161-57, 172, Tr. 202).

A few commenters suggested that employee observation could actually
decrease employee safety, for example when monitoring must take place
in a hazardous environment, such as an elevated location or one
containing a toxic atmosphere (Exs. 161-56, 161-74, 167, 181). But the
standard does not require employees to observe all monitoring or
testing, it merely offers them the opportunity to do so. The employees
and their representatives are less likely to take advantage of that
opportunity in particularly hazardous situations. Moreover, even having
an entrant or representative close by observing the actions of the
person testing the atmosphere, and checking the instruments after the
tests are complete could provide safety benefits. Employees already
have extensive rights to observe monitoring under OSHA's health
standards. OSHA has seen no evidence, and none was presented in this
rulemaking, that this observation creates safety hazards (Tr. 92-93).

OSHA does not believe that the final rule's requirements that
employers provide affected employees with an opportunity for employee
observation, or those requiring employee participation in paragraph
(l), are particularly subject to abuse or constitute an unwarranted
infringement on labor-management relations. OSHA standards frequently
require that work be performed in a particular way or by specific
employees. For example, the Lockout/Tagout (LO/TO) standard, 29 CFR
1910.147(c)(8), requires that locks and tags be affixed by the workers
who will be performing the service or maintenance covered by the
standard and, as discussed above, numerous toxic substance standards
provide affected employees and their representatives with the right to
observe hazardous substance monitoring. The requirement that employees
who are to enter hazardous confined spaces be allowed to observe the
required monitoring of those spaces is analogous to these provisions.
Like the LO/TO requirement, it recognizes that the employees whose
lives could be endangered by inadequate completion of these preliminary
safeguards have the strongest incentive to see that they are performed
properly (see Tr. 333).

OSHA also is not persuaded that the monitoring observation
requirement is especially subject to employee abuse. Some commenters
suggested that during periods of labor management discord, employees
could abuse the observation right to slow down or disrupt production
(see, e.g., Exs. 161-12, 161-25). Others expressed concern that the
provision could cause what one called a "logistical nightmare" if all
of the employees and representatives insisted on observing each
instance of testing and monitoring (see, e.g., Exs. 161-12, 161-26,
161-35, 161-78). But again, there was no evidence that this type of
disruption is caused by the employee observation provisions in OSHA's
health standards. The standard allows the opportunity for observation
by an entrant or his authorized representative, not by every employee
and representative at the workplace. Moreover, some employers, either
contractually or otherwise, already provide employees with the right to
observe monitoring and testing of confined space atmospheres (Exs. 161-
57, 173-B, Tr. 184-185, 202). One witness pointed out that, even in
those plants, confined space entrants did not always choose to observe
the monitoring (Tr. 202). And of course nothing in this standard
interferes with an employer's existing power to direct and control its
workforce, so long as it does not attempt to do so in a manner
inconsistent with the standard.

Nor does the provision interfere improperly in labor-management
relations, as suggested by some commenters (e.g., Ex. 161-35). In a
general sense, many safety and health issues could, in the absence of
OSHA requirements, be dealt with through traditional labor management
mechanisms. That does not mean, however, that OSHA does not have the
authority to require that work be performed in the manner it determines
can best reduce safety or health hazards. And OSHA's exercise of this
authority may, in some cases, force employers to alter some aspects of
their employee relations. For example, OSHA standards sometimes require
employers to provide medical removal benefits to workers whose health
may already have been affected by exposure to a toxic substance. These
benefits may include job assignments in areas with less exposure to the
toxic substance, continuation of pay, or training for new job
assignments (29 CFR 1910.1025(k) (lead), 1910.143(f)(2)(iv) (cotton
dust)). Although these issues would have been considered labor
relations matters in the absence of the OSHA standards, it is clear
that OSHA can impose such regulatory requirements to protect employee
safety and health. United Steelworkers of America v. Marshall, 647 F.2d
1189, 1236 (D.C. Cir. 1980).

Paragraph (k) -- Rescue and Emergency Services

OSHA is amending and reorganizing paragraph (k), the rescue and
emergency services provision of the standard.

A. Evaluation and Selection of Rescue and Emergency Services

The revisions to paragraphs (k)(1) and (k)(2) clarify an employer's
obligations to select a rescue service that is trained, equipped and
available to respond to emergencies that occur during confined space
entries. The emphasis of the revised language is on the employer's
evaluation of potential rescue providers, and on the factors that the
employer must consider in determining whether a particular provider is
capable of providing effective rescue services for the particular
situations that its confined space entrants may face. OSHA is also
adding a new non-mandatory Appendix F to the standard to provide
employers with additional assistance in evaluating potential rescue
services.

In the 1993 Permit Required Confined Spaces standard, OSHA
promulgated separate requirements for employers of rescue and emergency
teams and employers who used teams they did not employ. The
requirements were more specific for what the rule considered in-house
teams employed by the employer (29 CFR 1910.146(k)(1), (k)(2)). The
rule was criticized for its failure to contain equally explicit
requirements for "outside" rescue teams, or to contain an explicit
requirement that those teams be able to arrive at the worksite in a
timely fashion (Ex. 162-1). In the NPRM, OSHA proposed to require
employers to ensure that outside rescue teams be equipped, trained,
capable of responding in a timely manner, and aware of the hazards they
may encounter during rescue operations, and be provided with access to
the employer's confined spaces for rescue plan development and rescue
drill purposes (59 FR 60739).

OSHA received a wide array of comment on this proposal. Some
commenters believed that the language of the 1993 rule, particularly as
explained in the preamble to that rule, was adequate to assure
effective and timely rescue (Exs. 161-48, 161-49, 161-56, 167, 184).
Others argued that the proposed revisions did not go far enough, and
that OSHA should either prohibit outside rescue teams altogether or, at
a minimum, require that any rescuer be able to respond to an emergency
within some specified time frame, generally four to six minutes (Exs.
161-38; 161-39; 161-40; 161-62; 170). A number of commenters criticized
the distinction between in-house and outside rescue services, pointing
out that some of the assumptions on which OSHA based this distinction
were inaccurate (see, e.g., Ex. 161-20). Many of the comments
emphasized the need for knowledgeable and well-trained rescuers, not
only to provide more effective rescue to the endangered confined space
entrants but also to assure that the rescuers do not unnecessarily
endanger themselves (Exs. 161-7, 161-20, 170).

The commenters who believed that OSHA should not amend the existing
rule generally made four points:

2. Making employers responsible for the performance of outside
rescue teams is unrealistic for those employers who rely on outside
teams because they lack the expertise to develop their own in-house
teams.

3. Imposing a short time within which a rescue team must arrive at
the location of the emergency amounts to an effective prohibition of
outside rescue teams.

4. Requiring an employer to "ensure" the competence, timeliness,
and effectiveness of outside rescuers is a requirement that employers
guarantee successful rescue.

Typical of these comments is one by the Chemical Manufacturers
Association:

OSHA's proposed revisions to paragraph (k)(2) place an undue
burden on host employers. The likely outcome is that host employers
will not be able to use outside rescue services. Such an outcome is
totally inappropriate. Under the proposed revision, if the host
employer decides to use an outside rescue service, then it must also
ensure that this outside rescue service is "capable of functioning
appropriately." If a host employer is using the outside rescue
service, presumably the host employer does not have the expertise to
maintain a team in-house. In such a situation, how can the host
employer ensure that the service is capable of functioning
appropriately?

* * * * *

Paragraph (k)(2), as originally promulgated, required the correct
amount of accountability for host employers (Ex. 161-29).

Dow Chemical stated its belief that "In essence, by requiring host
employers to "ensure" that the outside rescuer can "effectively
respond in a timely manner" and that the outside rescuer is equipped,
trained and "capable of functioning appropriately," OSHA is requiring
that host employers guarantee their performance" (Ex. 181).

Those commenters who supported more stringent requirements made two
general points:

1. Without a clear requirement for rescuers to respond within a
very short time after an emergency arises, entrants will often die
while awaiting rescue.

2. Outside rescuers, particularly emergency responders, often do
not have the information or equipment necessary for effective and
timely rescue, and in some cases may not even know that employers are
relying on them for confined space rescue.

These comments, and OSHA's responses to them, will be discussed in
greater detail below.

A. Timely Response

OSHA has retained the language in the NPRM calling for timely
rescue capability. Although virtually all rulemaking participants
agreed on the need for "timely" rescue, a great deal of debate
concerned whether OSHA should include a particular response time in the
standard. Proponents of such a provision argued that in many confined
space emergencies, an entrant is not receiving adequate breathing air
and will suffer irreversible and frequently fatal effects within four
to six
minutes (Exs. 161-38, 161-39, 161-64, 161-71). Moreover, some of them
claimed that if rescuers are not on the scene quickly enough, co-
workers of the victim who are not equipped to perform rescue operations
are more likely to endanger themselves by attempting rescue operations
on their own (Ex. 161-38). They noted that a majority of deaths in
confined spaces occur among would-be rescuers (Exs. 161-38, 161-64).

Opponents of the inclusion of a specific time frame in the standard
pointed out that, realistically, a four to six minute response time
would require having fully equipped rescuers standing by during the
entire length of every permit space entry (Ex. 161-56). While others
noted that this would be appropriate on some occasions, but would not
be on many others (Tr. 51-52, 93, 210, 254). These commenters agreed
that inadequately prepared rescuers are likely endanger themselves more
than they assist the victim, but expressed concern that even designated
rescuers could endanger themselves if they are under too much pressure
to respond too quickly (Ex. 161-56). For example, Michael Roop of ROCO
Corp. testified that, in training rescuers ROCO instructs them "that
if you arrive at a scene and you're inside that confined space in two
or three minutes to made a rescue, then you're doing something wrong.
You're not being safe" (Tr. 248).

In the same context, ROCO and other rescue provider commenters
pointed out that "response time" is not the same as rescue time, and
that there are a number of discrete stages to a successful rescue
operation (Tr. 246-249; Ex. 161-52).

OSHA does not believe these concerns are irreconcilable. OSHA's
recently revised Respiratory Protection standard, 29 CFR 1910.134
(1998), promulgated at 63 FR 1152-1300 (Jan. 8, 1998), as well as the
predecessor to that standard, 29 CFR 1910.134 (1997), require standby
rescue personnel when employees are working in atmospheres that are
immediately dangerous to life or health (IDLH). It is clear that the
atmosphere in a permit space where an entrant could suffer irreversible
impairment within four to six minutes would meet the definition of an
IDLH atmosphere: "an atmosphere that poses an immediate threat to
life, would cause irreversible adverse health effects, or would impair
an individual's ability to escape from a dangerous atmosphere" (29 CFR
1910.134(b)); see also the preamble discussion at 63 FR 1184-1185.

According to the Respiratory Protection standard, when employees
enter such a space, the employer must ensure that:

(i) One employee, or when needed, more than one employee is
located outside the IDLH atmosphere;

(ii) Visual, voice, or signal line communication is maintained
between the employee(s) in the IDLH atmosphere and the employee(s)
located outside the IDLH atmosphere;

(iii) The employee(s) located outside the IDLH atmosphere are
trained and equipped to provide effective emergency rescue;

(iv) The employer or designee is notified before the employee(s)
located outside the IDLH atmosphere enter the IDLH atmosphere to
provide emergency rescue;

(v) The employer or designee authorized to do so by the
employer, once notified, provides the appropriate assistance
necessary to the situation;

(vi) Employee(s) located outside the IDLH atmospheres are
equipped with:

(A) Pressure demand or other positive pressure SCBAs, or a
pressure demand or other positive pressure supplied-air respirator
with auxiliary SCBA; and either

(B) Appropriate retrieval equipment for removing the employee(s)
who enter(s) these hazardous atmospheres where retrieval equipment
would contribute to the rescue of the employee(s) and would not
increase the overall risk resulting from entry; or

(C) Equivalent means for rescue where retrieval equipment is not
required under paragraph (g)(3)(vi)(B) (29 CFR 1910.134(g)(3)); see
also preamble discussion at 63 FR 1242-1245.

OSHA believes that compliance with these requirements will meet the
concerns of those commenters who urged OSHA to require a rescue
response time of only a few minutes. Because the standby personnel
required by the Respiratory Protection standard will have been
monitoring the confined space entrant's condition throughout the
operation and will be fully equipped to begin rescue operations, they
will be able to respond more quickly than rescue team members arriving
from another location, whether inside or outside the plant, who would
need to gather appropriate equipment, prepare to use that equipment,
and be briefed on the emergency situation before beginning rescue
operations. And because the standby personnel must be appropriately
trained and equipped to perform rescue operations, other inadequately
prepared employees will be less likely to endanger themselves by
attempting hasty and dangerous rescues. (Note that at least one
employee, serving as attendant, must still remain outside the permit
space, as required by Section 1910.146(i)(4).) On the other hand,
because the Respiratory Protection standard requirement only applies to
IDLH atmospheres, a less resource-intensive and more measured response
capability may be used for those situations where there is not the same
need for virtually instant response.

OSHA has therefore decided to promulgate the requirement it
proposed for "timely" rescue, a requirement that was not opposed by
any rulemaking participant, rather than to define precisely what is
timely. That determination will be based on the particular
circumstances and hazards of each confined space, circumstances and
hazards which the employer must take into account in developing a
rescue plan. OSHA has added a note to paragraph (k)(1)(i) to clarify
this point.

B. Evaluation, Selection, and Use of Rescue Services

OSHA has generally reorganized paragraph (k) to de-emphasize the
distinction between in-house and outside rescuers and to focus instead
on the employer's obligation to evaluate rescue services so that it can
select one that is competent to provide the rescue services appropriate
for that employer's operations. Several commenters explained that
OSHA's assumption that in virtually all cases the "host" employer
would be the employer of both the confined space entrants and any
in-situ rescue team but would not be the employer of an off-premises team
was erroneous (Ex. 181). These commenters described a number of
situations where this assumption would be inaccurate. For example, in
some cases, confined space entrants may be contractor employees,
although the rescue team may be composed of on-site employees of either
the host employer or another contractor (Ex. 179). In other cases, the
host employer may arrange for the standby presence of an "outside,"
non-employee rescue team during particularly hazardous permit space
entries. In still other situations, an employer may use a rescue team
comprised of employees of a different facility that it operates.

As a result OSHA has revised paragraph (k)(1) to emphasize the
evaluation that an employer must perform of available rescue and
emergency resources before designating a rescue provider for purposes
of this standard. This also responds to the concerns of a number of
commenters that the language OSHA used in the NPRM, requiring the
employer to "ensure" that the rescue service it selected was able to
function adequately, appeared too result oriented. These commenters
believed that compliance could only be determined by a post hoc
consideration of the success or failure of an actual rescue effort.
They said the focus should
instead be on the employer's assessment of the rescuer's capabilities
(Ex. 161-20). OSHA agrees that assessment of capabilities is the
appropriate focus for employer efforts, and intended this result in
both the 1993 standard and the NPRM. The language of this final rule,
by explicitly framing the employer's obligations in terms of the
evaluations it performs, will clarify this intent.

Paragraph (k)(1)(i) explains that the rescue service evaluation
must take into account the rescuer's ability to respond in a timely
manner to the types of emergencies that may arise in the employer's
confined spaces. As noted above, the note to paragraph (k)(1)(i)
explains that what will be considered timely rescue will vary according
to the specific hazards involved in each confined space entry.

Paragraph (k)(1)(ii) requires that the evaluation also include an
assessment of the skill and competence of the prospective rescuers.
Several commenters pointed out that in some cases employers have
designated local fire and rescue services as their rescuers without
first confirming that those services even have a confined space rescue
capability (Ex. 161-41). Although many emergency responders may be able
to provide proper permit space rescue functions for all spaces that do
not require immediate, stand-by rescue capability, not all responders
have this ability (Ex. 161-41). Each employer relying on these services
should verify that the emergency responder is indeed trained, equipped,
able, and willing to perform rescue for confined spaces in its
facility.

In evaluating a prospective rescue provider's abilities under this
subparagraph, the employer must also consider the willingness of the
service to become familiar with the particular hazards and
circumstances faced during its permit space entries. Subparagraphs
(k)(1)(iv) and (k)(1)(v) require the employer to provide its designated
rescuers with information about its confined spaces and access to those
spaces, both to allow the development of appropriate rescue plans and
to perform rescue drills. A rescue service's receptiveness to this
information is directly relevant to its ability to function
appropriately during actual rescue operations.

A few commenters provided information on particular products,
including communication equipment (Ex. 161-52) and in-situ
resuscitation devices (Tr. 459-468) for use in permit space rescue
operations. OSHA does not, of course, endorse specific products.
However, the Agency notes that the equipment used by a rescue service,
and that equipment's utility in enhancing rescue efforts, is a relevant
factor for employers to consider during the rescuer evaluations
required by this paragraph.

Paragraph (k)(1)(iii) requires the employer, after performing the
evaluations required by paragraphs (k)(1)(i) and (k)(1)(ii), to select
a rescue provider that has the ability to respond in a timely manner to
the particular hazards at issue, and to provide proficient rescue
services. In other words, it is not enough for an employer simply to
perform the evaluations required. The employer must also utilize the
results of those evaluations to select a rescue service that will meet
the goals of this standard.

Paragraph (k)(1)(iv) requires the employer to notify the rescue
service it selects of the hazards that may exist at the permit spaces
in its facility. This requirement was included in the NPRM and was also
present in the 1993 standard. In the context of this revised standard,
this notification provision obviously includes notifying the rescue
service that it has been selected and that the employer will be relying
on it. In some cases compliance with this section, as well as with
paragraphs (k)(1)(i) and (k)(1)(ii), may require the employer to notify
the rescue service immediately prior to each permit space entry.

Paragraph (k)(1)(v) requires employers to provide the rescue
service selected with access to all confined spaces from which rescue
may be necessary so that the rescue service can develop appropriate
rescue plans and practice rescue operations. This provision, which is
essentially unchanged from both the NPRM and the 1993 standard, was the
subject of a significant amount of comment from employer
representatives who urged OSHA to require only that they provide access
to "representative" or "typical" spaces (Exs. 161-29, 161-20, 161-
25, 161-26, 161-2-9, 161-60, 184). These commenters pointed out that a
number of an employer's confined spaces were likely to share identical
configurations, and that it would therefore not be necessary for the
rescue service to have access to each of them (Exs.161-25, 181, 184).
Some also expressed concern that providing access to some permit
spaces, which are only entered at rare intervals for cleaning or other
servicing, could be costly and disruptive of the employer's ongoing
operations.

OSHA recognizes the validity of these concerns but believes that
the employer's needs can be accommodated within the context of the
existing requirement. Accordingly, OSHA has not made the suggested
change. Although OSHA agrees that a rescue service is unlikely to need
access to every one of a group of similar spaces, OSHA believes that it
should be the rescue service that decides which space, or spaces, will
be used for planning and practice purposes. This is particularly true
for off-site rescue services, who are less likely to be familiar with
the layout of the host employer's workplace. The Agency also took this
position in the January 14, 1993 final rule (58 FR 4529-4530), and at
the September 27, 1995, public hearing (Tr. 22). Similarly, although
providing access to some permit spaces may be disruptive of normal
production operations, OSHA believes that employers should be able to
work out with their designated rescue services mutually convenient
times to provide access to those spaces, if the rescue service believes
that access to those particular spaces is necessary for planning or
practice drill purposes. Indeed, none of the commenters argued that
such accommodations could not be made.

As proposed, OSHA has redesignated paragraph (k)(1) of the 1993
standard, dealing with the requirements for rescue service employers,
as (k)(2) of this revision, but has not made substantive changes in
this requirement. Most of the comment OSHA received on this provision
dealt with the fact that employers have different obligations toward
rescue teams comprised of their own employees than toward teams they do
not employ directly. However, as a number of commenters recognized, to
the extent that the "non-employee" rescue services are comprised of
employees of another employer subject to the OSH Act, they also will
receive the benefits of these provisions (Ex. 161-20). And to the
extent that a service's failure to comply with these provisions affects
its rescue skills and competence, employers should take this into
account in deciding whether to select that service to provide its
rescue operations.

OSHA has made some editorial changes in this paragraph. For
example, revised paragraph (k)(2)(i) states that rescue PPE and related
training are to be provided at no cost to affected employees. This
language has been added so it is clear that this provision is
consistent with existing §1910.146(d)(4).

C. Retrieval Systems

OSHA proposed to revise paragraph (k)(3)(i) to allow attachment of
retrieval lines at any point "which the employer can establish will
ensure that the entrant will present the smallest
possible profile during removal" rather than only at the entrant's
back near shoulder level or above the entrant's head. The final rule
changes this language somewhat, but retains the performance orientation
of the proposal. OSHA explained in the NPRM that, subsequent to the
1993 promulgation, the Agency received information which indicated that
other equally effective and safe points of attachment exist.
Accordingly, OSHA proposed to add the new language to paragraph
(k)(3)(i). The proposed paragraph, however, inadvertently omitted
language providing for the use of wristlets in certain circumstances.

Commenters (Exs. 161-1, 161-9, 161-13, 161-14, 161-15, 161-20, 161-
26, 161-29, 161-34, 161-37, 161-43, 161-45) uniformly supported the
increase in flexibility allowed by the proposed revision. Some,
however, suggested changes to OSHA's proposed language. The National
Grain and Feed Association (Ex. 161-14) suggested that the standard
allow attachment "in the manner determined by the employer most
effective to ensuring that the entrant" will present the smallest
possible profile during removal. OSHA has not adopted this suggestion
because it believes the two points of attachment listed (the center of
the entrant's back near shoulder level and above the entrant's head)
should be emphasized because those points are preferred for most
situations.

Another commenter (Ex. 161-45) suggested replacing the proposed
"smallest possible profile" with "best possible profile." OSHA
agrees that it may not always be desirable for the entrant to present
the smallest possible profile during rescue. For instance, in
situations where the size of the space or portal is not limiting, a
point of attachment which results in the smallest possible profile may
be less desirable than some other point of attachment which better
facilitates the work to be done. Accordingly, OSHA has decided to
replace the proposed language with the phrase "profile small enough
for the successful removal of the entrant." OSHA also has not adopted
a suggestion of the Tennessee Valley Authority (Ex. 161-34) that OSHA
change the term "profile" to "cross sectional profile" because OSHA
believes that the term "profile" is clear in this context. Finally,
two commenters called to OSHA's attention the inadvertent omission in
the NPRM of the option to use wristlets where the use of a body harness
is infeasible or would create a greater hazard (Exs. 161-20, 161-26).
The revised rule retains the language on wristlets.

OSHA did not propose, and has not made, any change to subparagraphs
(k)(3)(ii) or (k)(4). Subparagraph (k)(3)(ii) requires a mechanical
device to be available to retrieve entrants from a vertical confined
space more than five feet deep. OSHA notes that it has always intended
that the word "available" in this provision mean "at the access
point of the vertical entry and ready for use."

Paragraph (l) -- Employee Participation

A new paragraph (l) has been added to the standard, dealing with
employee participation in confined space programs. Paragraph (l)(1)
requires employers to consult with affected employees and their
representatives in the development and implementation of their confined
space programs; paragraph (l)(2) requires that those employees and
representatives have access to all information developed under this
standard.

OSHA's original Permit Required Confined Spaces standard hearing
notice (54 FR 41462) requested comments on the subject of worker
participation in the design and implementation of a PRCS program. OSHA
received several comments on the subject (Exs. 14-318, 14-210, 14-215,
14-220, 14-222) and some testimony at the public hearings also
addressed it (Tr. 225-226, 251, 386, 589-590; Tr. 1063-1064; Tr. 317-
318, 348-352, 356, 376, 379-380, 411, 427-428, 532-533, 612-613, 622-
623). The Agency addressed these comments in the preamble to the
January 1993 standard (58 FR 4484-4485).

The standard encouraged the involvement by employees and clearly
recognized it as vital to the creation of an effective permit space
program. However, it did not require employee involvement in the
development of the permit program, although it did provide for such
involvement in permit space program inspection and review (paragraphs
(c)(4) and (d)(13)), and in review of employee training upon evidence
of deficiencies ((g)(2)(iv)). OSHA explained its decision not to
require employee involvement in the development of confined space
programs by referring to the difficulties of mandating labor-management
collaboration in the development of the permit space program and of
resolving conflicts between workers and employers (FR 4484-4485). As is
discussed more fully below, OSHA believes this revision avoids both of
these problems.

Although the NPRM on which this revision is based did not
explicitly mention employee involvement in the development of confined
space programs, some commenters submitted statements urging OSHA to
include a provision explicitly allowing such participation (see, e.g.,
Ex. 161-38; 161-40). Further discussion of this issue occurred at the
public hearing.

Commenters supporting the addition of an employee participation
provision to the standard pointed out that employee participation in
plan design is already done at many workplaces pursuant to collective
bargaining agreements, and that such participation would be consistent
with that occurring under other OSHA standards, particularly the
Process Safety Management standard (29 CFR 1910.119) (Ex. 161-140). It
was also pointed out that employees who actually work in confined
spaces and their representatives are particularly well qualified to
contribute to the task analysis that is a necessary step in developing
a confined space program (Exs. 161-38; 161-140).

In contrast, even the American Petroleum Institute (API), the
commenter who most explicitly opposed inclusion of such a requirement,
acknowledged that involvement by employees in the program development
process could be useful. API said that OSHA should continue to
"encourage" such involvement but should not require it because such a
requirement could expose the standard to "additional controversy or
litigation" (Ex. 167). The American Gas Association made a similar
statement (Ex. 161-770). Other more general comments on employee
participation repeated the point made in the original rulemaking that
such participation raises labor relations issues that should not be
addressed by an OSHA standard (see, e.g., Exs. 184, 187).

OSHA has determined that the consultation requirement in new
paragraph (l) will provide the benefits discussed by the participants
who favored an employee involvement requirement. By leaving the final
contents of the confined space program up to the employer, however,
this provision should minimize controversy and avoid the need to
develop a cumbersome procedure to resolve conflicts. OSHA expects that
there will be few conflicts in any event, because it believes that the
vast majority of employers and employees will cooperate to make
confined space entry procedures as safe and efficient as possible. This
requirement should only have a minimal effect on labor-management
relations although, as noted in the discussion of paragraph (c) above,
the importance of employee
safety and health would justify such an effect even if it were
substantial.

As the UAW pointed out, the employees who perform the actual entry
can contribute immeasurably to the analysis of the tasks performed
during a permit space entry to ensure that the hazards within the space
remain under control and that additional hazards are not introduced
(Ex. 161-40). These employees are the people most familiar with the
actual practices during confined space entries. If those practices
differ significantly from the practices intended by the employer, the
employer needs to be made aware of the differences and to take
appropriate steps to remedy any deficiencies in the permit entry
procedures. Likewise, employees may be aware of hazards within the
space that are not being taken into consideration by non-entrants.

In addition, OSHA's own experience in enforcing the Congressionally
mandated employee participation requirement under the Process Safety
Management standard has convinced the Agency of both the value and the
workability of the new provisions being added in paragraph (l). OSHA
believes that, as well as improving the quality of the permit space
programs developed under the standard, this new provision will also
enhance compliance with those programs. Clearly, employees who have
participated in the development of programs will have a better
understanding of the reasons for the various provisions of the program
and will therefore be more likely to comply with those provisions.
Similarly, any manager who might be tempted to bypass any of the
program safeguards will be less able to convince an employee that such
an action would not affect safety and health.

Finally, paragraph (l) is consistent with both the Congressional
intent and OSHA's long practice of promoting employer-employee
cooperation in safety and health matters. The Congressional intent is
shown in part by Section 2(13) of the OSH Act, 29 U.S.C. 652(13), which
states that one of the purposes of the Act is to "encourage joint
labor-management efforts to reduce injuries and disease arising out of
employment." More recently, Congress' intent can be seen in its
directive to OSHA to promulgate a PSM standard that explicitly provides
for employee involvement in the development of the process safety
management programs mandated by that standard.

An example of OSHA's longstanding practice of encouraging and
promoting employee involvement is the Agency's 1989 Safety and Health
Program Management Guidelines (54 FR 3904), which recognize the
importance of involving employees in safety and health programs at the
workplace. Paragraph (c)(1)(iv) of those guidelines urges employers to
provide for and encourage employee involvement in "the structure and
operation of the [safety and health] program and in decisions that
affect their safety and health, so that they will commit their insight
and energy to achieving the safety and health program's goal and
objectives." Although the guidelines are voluntary, this provision
demonstrates OSHA's belief that employee involvement is necessary to
the day-to-day safety and health of workers. Additionally, the
guidelines are being applied in many workplaces through several OSHA
programs, such as the Voluntary Protection Program, the Safety and
Health Achievement and Recognition Program, and in several State and
Regional experimental programs. OSHA's 1998 Strategic Plan also
emphasizes the importance of employee involvement in safety and health
and establishes as an Agency objective the enhancement of such
involvement in all OSHA initiatives, as appropriate.

New paragraph (l)(2) requires employers to share with employees and
their authorized representatives all of the information generated under
this standard. Comments objecting to this provision were generally
limited to pointing out that it would be redundant with other
provisions in the standard that already require the great majority, if
not all, of this information to be made available to employees and
representatives. OSHA recognizes this redundancy; it is adding this
provision for purposes of emphasis and clarification.

For all of the reasons described above, OSHA has determined that
the consultation requirement in paragraph (l)(1) is supported by the
record of this rulemaking; it will contribute to confined space safety;
and it is consistent with longstanding agency policy. The information
provision requirement in paragraph (l)(2) is also consistent with
agency policy, and will emphasize that employees and their
representatives have a right to all information affecting their health
and safety.

As discussed above, OSHA has added a new, non-mandatory Appendix F.
This appendix provides guidance to employers in choosing appropriate
rescue services. The Agency received several comments (Exs. 161-4, 161-
7, 161-44, 161-55) which addressed the need for criteria to assist
employers in evaluating potential rescuers. As expressed by one
commenter (Ex. 161-44): "If an employer does not have rescue knowledge
and experience, how can he possibly evaluate a prospective rescue
service? What evaluation and verification process is reasonable and
acceptable to OSHA?"

The Agency recognizes that some employers will need information on
how to evaluate prospective rescue services. However, presenting
criteria that match every situation would be difficult. For this
reason, OSHA has determined that the suggested criteria for rescue
service evaluations should be presented in a non-mandatory appendix.
Additionally, this appendix provides criteria for ongoing performance
critiques for rescue services so that employers will have a means to
judge whether a rescue service has maintained its ability to perform
safe and effective permit space rescues. Although the Appendix is
divided into a section addressing initial assessments and one
addressing performance critiques for rescue services already operating
at an employer's facility, the considerations in the two sections
should not be seen as mutually exclusive. To the extent the employer
can obtain enough information to make a determination, the same factors
would be applicable to both determinations.

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